"Extreme pornography" is a term introduced by
the UK Government in Part 5, Section 63 of the
Criminal Justice
and Immigration Act 2008,[1] which
made possession of such images a criminal offence from 26 January
2009.[2][3] It
refers to pornography, defined as an image "of such a
nature that it must reasonably be assumed to have been produced
solely or principally for the purpose of sexual arousal", which is
"grossly offensive, disgusting or otherwise of an obscene
character", and portrays any of the following:

(a) an act which threatens a person’s life,

(b) an act which results, or is likely to result, in serious
injury to a person’s anus, breasts or genitals,

(d) a person performing or appearing to perform an act of
intercourse or oral sexwith an
animal (whether dead or alive),

and a reasonable person looking at the image would think that
any such person or animal was real.

The term covers staged acts, and applies whether or not the
participants consent.[4][5]
Classified works are exempt, but an extract from a classified work,
if the image was extracted for the purpose of sexual arousal, would
not be exempt. Whether an image is "pornographic" or not is up to
the magistrate or jury to determine simply by looking at the image;
it is not a question of the intentions of those who produced the
image.[6]
If an image is held in a person's possession as part of a larger
series of images, the question of whether it is pornographic is
also determined by the context in which it appears. Therefore an
image might be legal in some contexts, but not in other contexts.
Serious injury is not defined by the act, but is up to the
magistrate or jury.[6]
The bill gives examples of acts which would be covered: depictions
of hanging, suffocation, or sexual assault involving a threat with
a weapon; the insertion of sharp objects into or the mutilation of
breasts or genitals.[7]

The definition of "obscene" is not the same as that used in the
Obscene Publications Acts,
which requires that an image "deprave and corrupt" those likely to
view it; instead this is the ordinary dictionary definition of
"obscene". "Grossly offensive" and "disgusting" are given as
examples of "obscene".[6]

There is a defence for the defendant if he can prove that he
"directly participated" in the act, and where the participants
consented, but only if the acts are those that can be legally
consented to in the UK (see Operation Spanner). This defence is
also not available to the photographer, or other "onlookers" who
were present, but did not directly participate.[6]

Where (a) or (b) apply, the maximum sentence is 3 years;
otherwise the maximum is 2 years. Adults sentenced to at least two
years will be placed on the Violent and Sex Offender
Register.

As a specific technical term, it appears to have been introduced
in England following the
death of Jane Longhurst in 2003 caused by Graham Coutts who
was obsessed with such depictions downloaded from web sites
dedicated to such content.

Contents

History

After Graham
Coutts's conviction in February 2004, the Government and police
forces called for "violent" adult pornography sites to be shut
down.[8][9][10] Jane
Longhurst's mother and sister launched a campaign against such
sites. A petition promoted by MP Martin Salter which gained 50,000
signatures was submitted to the government demanding a ban of
"extreme internet sites promoting violence against women in the
name of sexual gratification".

The Government was unsuccessful shutting down such sites, since
they are based in other countries (e.g., the United States), and
are legally made with consenting adults. In August 2005, the
British government consulted on instead criminalising the
possession of such images.

On 30 August 2006, the government published the results of the
consultation and announced its intention to introduce a possession
ban on all extreme pornography as soon as the legislative timetable
allows. Opinions on the proposals were sharply divided in the
consultation, with 61% (241 out of 397) of responses rejecting the
need for stronger laws in this area, and 36% in favour (3% gave no
opinion). The proposed maximum penalty for possession of these
images was three years imprisonment.[11]

On 26 June 2007, the government published the plans as part of
the Criminal Justice and Immigration Bill. The bill extended the
scope of the proposals from "serious, disabling injury" to "serious
injury".

The law came into force on 26 January 2009.

In July 2009, Baroness
O'Cathain proposed an amendment to the Coroners and Justice
Bill that would bring in an equivalent law for "extreme
pornographic writings".[12][13]

Notable
uses

A 20 year old St Helens man was prosecuted for having "extreme"
images involving women and animals on 10 February 2009.[14] The
images were reported by a PC repair shop. He was given an 18-month
supervision order, 24 hours at an attendance centre, and had to pay
costs of £65.[15][16]

As of June 2009, The Register claimed that, according to their
sources within law enforcement, there have been two or three
prosecutions against people selling Chinese pirated DVDs, which
include some bestiality DVDs.[17]

On 31 December 2009, a man was found not guilty under the law.
The film he was charged with possessing depicted a sexual act with
a tiger, but it emerged that the tiger in the film was not real,
and the image was a joke. Police and prosecutors admitted that they
had not listened to the film with sound turned on.[18]

Scotland

In 2004 in Scotland, a committee of Members of the Scottish
Parliament backed a call to ban adult pornography as the Equal
Opportunities Committee supported a petition claiming links
between porn and sexual crimes and violence against women and
children.[19] A
spokeswoman said "While we have no plans to legislate we will, of
course, continue to monitor the situation." In 2007, MSPs looked
again at criminalising adult pornography, in response to a call
from Scottish Women Against Pornography for pornography to be
classified as a hate crime against women. This was opposed by Feminists Against
Censorship.[20][21]

Arguments

The Government consultation stated that "the material may often
cause serious physical and other harm to those involved in making
it; in some cases the participants are clearly the victims of
criminal offences". The consultation did not attempt to estimate
the frequency of these events, and there is no evidence that such
content is being distributed at all. The law would cover images
whether or not the participants consented, and would include not
only images where extreme violence is taking place, but also
fictitious images where people are role playing such violence.

Material is considered extreme pornography only if the main
purpose of creating it was to produce sexual arousal. This rules
out most mainstream films, documentaries, war footage or
instructional videos, regardless of content, though these would be
included if images were extracted from them for the purpose of
sexual arousal. Textual material or cartoon depictions are also
excluded regardless of theme or detail.

The consultation stated "it is possible that such material may
encourage or reinforce interest in violent and aberrant sexual
activity to the detriment of society as a whole" but also that they
do not have "sufficient evidence from which to draw any definite
conclusions as to the likely long term impact of this kind of
material" and that there was an "absence of conclusive research
results as to its possible negative effects".

The consultation cited the case of Graham Coutts who killed Jane
Longhurst, suggesting a link between violent pornography and the
murder. Coutts had previously accessed websites that offered such
pornography, although he had been practicing erotic asphyxia for five years before
exposure to such material, and had told psychiatrists in 1991 that
he feared his thoughts may lead to criminal behaviour.[25]

The Government also wishes to criminalize possession of the
material in order to attempt to reduce the risk of children coming
into contact with it. The consultation cited a study which reported
"57% of all 9-19 year olds surveyed who use the Internet at least
once a week had come into contact with pornography online", but it
did not distinguish between different forms of pornography, and the
government has no plans to criminalize all pornography for the same
reason.

In discussing the 2006 quashing of the conviction of Coutts,
Jane Longhurst's purported killer, a barrister supporting the
backlash stance observed:[26]

Lord Hutton's judgment points out that Coutts had engaged in
breath play sexual games with previous partners years before he
started to use internet porn. The Judge commented that if the same
Defendant guilty of the same conduct been tried before the same
jury, but without the evidence that he used internet porn, the jury
would have been very likely to accept that he did not intend to
kill. It is hard to escape the conclusion that the Judge thought
the evidence that Coutts used porn prejudiced the jury and led to
unfounded assumptions about Coutt's intent. What this judgment
shows is that the obsession with criminalizing the users of porn
will further prejudice juries and lead to miscarriages of
justice.

In September 2007 the Government published a Rapid Evidence
Assessment by Catherine Itzin, Ann Taket and Liz
Kelly, investigating "the evidence of harm relating to exposure to
extreme pornographic material".[27] This
was criticised in a statement signed by over forty academics as
being "extremely poor, based on contested findings and accumulated
results. It is one-sided and simply ignores the considerable
research tradition into "extreme" (be they violent or sexually
explicit) materials within the UK's Humanities and Social
Sciences." [28]

The law has been criticised as likely breaching Articles 8 and
10 of the European Convention on
Human Rights.[29][30] The
Government also states this, but believes "this is justified as
being in accordance with the law, and necessary in a democratic
society for the prevention of crime, for the protection of morals
and for the protection of the rights and freedoms of others".[31]

The Government has conflated the issue with participants being
abused in the production of such images, with Martin Salter
claiming the existence of snuff films where women are raped and
murdered on camera in Guatemala.[32][33]
However, no such examples of images have been shown to exist, and
the sites referred to by the Government are instead those produced
in the UK and US with consenting actors (see "Sites labelled as
"extreme pornography"", below).

The law has been criticised for criminalising images where no
crime took place in their creation. In the House of Lords debates,
Lord Wallace
of Tankerness stated "Having engaged in it consensually would
not be a crime, but to have a photograph of it in one's possession
would be a crime. That does not seem to me to make sense."[34] The
law has also been criticised for covering images of consenting
adults, for example including some forms of BDSM or bondage pornography.[35][36][37]

In 2009, the organisation Comic Shop Voice said that the law may
result in the ban certain comic books, such as Watchmen, Batman:
The Killing Joke and several collections of manga. They said in a statement: "Because this is
a minefield for the law it then falls on the Police to enforce it,
and it is their judgement that could lead to a prosecution. We
COULD get to a point where the police could legitimately visit your
home or workplace, and sanctioned by an un-elected magistrate or
judge go through your collection and if they find any comic book
that they feel will cause sexual arousal or displays extreme
violence then they could arrest you."[38]

Sites labelled as
"extreme pornography"

Necrobabes

Necrobabes is a website hosting images of women pretending to be
dead.[39] The
site is subtitled "erotic horror for adults". Necrobabes was
included as an example of a site that relatives of Jane Longhurst,
who was murdered by Graham Coutts, thought should be banned.

Membership of Necrobabes was used as evidence in the murder
trial of Patrick Anthony Russo, a Texas Church leader, who murdered
Diane Holik in 2001. During the subsequent police investigation it
was found out that Russo had been a paying subscriber to
Necrobabes. Partly because of his Necrobabes membership and other
evidence found from his computer, including browser history and web
searches for "asphyx",
Russo was found guilty of strangling Holik to death.[40][41][42] Russo
was given a life sentence.

However, the site owners assert "The material we produce is
fanciful, even cartoonish in many regards; there is nothing
realistic about it. Our viewers know this. Far from normalizing
violence, it relegates it squarely into the realm of fantasy." It
states that scenes are simulated, and that no one was harmed during
the making of our photo stories and videos. They claim that,
contrary to the aforementioned petition, they "do not encourage nor
condone real-life violence against others". The site states that
there is no pornography on the site, and claims that it is exempt
from the recordkeeping requirements of 18 U.S.C. §
2257, because there are no images of actual sexually explicit
conduct.

The site has been covered in the US media, which support that
the site is entirely fantasy using consenting models.[48][49][50]

Legality

Necrobabes is hosted in the United States and has been online
since 1997. The UK Government has attempted without success to get
the US authorities to shut down sites such as Necrobabes.[51] Such
images are legal in the US, and it has been claimed they would be
hard to ban without violating the First
Amendment.[52]

Hanging
bitches

The site hangingbitches.com was run by Frans van der Hulst. The
site was closed, but he has since opened more sites. The images are
produced in the United Kingdom with British model actors who have
been shown alive and unharmed.[53]

Organizations

Backlash launched a campaign
in 2005 to challenge the joint UK Home Office and Scottish
Executive proposals to criminalize simple possession of
material.

The Consenting Adult Action
Network is a growing grassroots network which opposes the law
and any other legislation that restricts the sexual choices of
consenting adults. It has organised protests against the new
law.[54][55]

^
The Government consultation
states "whether or not they notionally or genuinely consent to take
part"; and "actual scenes or realistic depictions".

^
The Explanatory Notes state
the Government's opinion that the partipants' consent is not
legally valid (see Operation Spanner) and hence not a
justification under this new law (803); and states "In the case of
images of staged activity , the Government believes that banning
possession is justified..." (804).

^Tom Wells (August 31, 2006). "Mum wins
sick porn sites ban". The Sun. "The musician viewed sites with
names like "necrobabes" and "hangingbitches" before using a pair of
tights to strangle special needs teacher Jane, of Brighton, East
Sussex. He was jailed for murder in 2004 but is
appealing."

This - Petition to: Abandon plans to make it a criminal offence to possess &quot;violent pornography&quot;. | Number10.gov.uk

Another petition - Petition to: steadfastly proceed with plans announced in the Queen's Speech to make possession of extreme pornography illegal and to include a much wider range of pornographic imagery, such as R18 material, within the scope of the Criminal Justice Bill. | Number10.gov.uk